Orissa High Court
Bihari Sahoo vs Lingaraj Behera And Others on 9 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 754 OF 2017
Bihari Sahoo .... Petitioner
Mr. Samir Kumar Mishra, Advocate
-versus-
Lingaraj Behera and others .... Opp. Parties
None
(For Opp. Party No.3)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 09.03.2023
6. 1. This matter is taken up through hybrid mode.
2. Order dated 27th June, 2017 (Annexure-2) passed by
learned Additional District Judge, Nimapara in R.F.A. No.80 of
2016/7 of 2010 is under challenge in this CMP, whereby an
application filed by the Petitioner to send the endorsement made
by the Defendants-Opposite Parties on the back side of the
agreement i.e. Ext.1(f) to 1(g) to the handwriting expert for
comparison with his admitted signature, has been rejected.
3. Mr. Mishra, learned counsel for the Petitioner submits that
C.S. No.12 of 2006 has been filed for specific performance of
contract against the Defendants-Opposite Parties. The suit was
decreed directing the Defendants to execute the sale deed by
accepting the balance amount of money. It is the case of the
Plaintiff-Petitioner that after execution of the agreement, the
Defendants had received a sum of Rs.59,000/- by giving their
endorsement on the back side of the agreement. Thus, an appeal
was filed assailing the said judgment and decree stating that the
Plaintiff is only required to pay the balance amount after adjusting
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Rs.59,000/-, as it had already been paid to the original Defendant.
Learned trial Court disbelieved the signature of the Defendant by
comparing it by itself without sending it to the handwriting
expert. As comparison of the signature of the parties amounts to
scientific investigation under Order XXVI Rule 10-A C.P.C., the
same cannot be undertaken by the Court itself. Thus, during
pendency of the appeal, the Plaintiff-Petitioner filed an
application to send the signature of the Defendant at the back side
of the agreement to the handwriting expert for comparison with
his admitted signature. The said application was rejected on the
ground that earlier no application was filed before learned trial
Court to send the said signature to the handwriting expert and this
Court while disposing of CMP No.229 of 2014 directed learned
appellate Court to dispose of the appeal expeditiously.
4. It is his submission that unless the signature is sent to the
handwriting expert, the Plaintiff-Petitioner will be highly
prejudiced, as he has to pay a sum of Rs.59,000/-, which has
already been paid to the original Defendant. Hence, he prays for
setting aside the impugned order under Annexure-2 and to send
the signature at the back side of the agreement to the handwriting
expert for comparison.
5. None appears for the Opposite Party No.3 although he is
represented through learned counsel.
6. From the submission made by Mr. Mishra, learned counsel
for the Petitioner, it appears that a ground has been taken in the
memorandum of appeal to the effect that the Petitioner is not
liable to pay Rs.59,000/-, as directed by learned trial Court. It is
submitted by Mr. Mishra, learned counsel for the Petitioner that in
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order to arrive at a conclusion whether the Petitioner has to pay a
sum of Rs.59,000/- or not, the signature of the original Defendant
at the back side of the agreement has to be examined by a
handwriting expert. Admittedly no such prayer was made by the
Petitioner before learned trial Court. However, the Court itself
compared the signature and came to a conclusion that the
signature at the back side of the agreement is not of the original
Defendant. The same is a matter of consideration at the time of
adjudication of the appeal itself. When no application was filed
before learned trial Court to send the signature to the handwriting
expert at the instance of the Plaintiff, no such application is
maintainable during pendency of the appeal. While adjudicating
the appeal, if the Court feels that the matter requires consideration
by a handwriting expert, it has the discretion to pass necessary
orders to that effect. In view of the above, I am not inclined to
entertain the impugned order under Annexure-2.
7. Accordingly, the CMP being devoid of any merit stands
dismissed.
8. Interim order dated 12th July, 2017 passed in Misc. Case
No.864 of 2017 stands vacated.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
